亨利-梅因：国际法Lecture 8

　　LECTURE VIII. THE MODERN LAWS OF WAR.

　　In my last lecture I explained the detestation which newly-invented instruments of war sometimes occasioned in olden days， and of the severity with which soldiers who employed them were sometimes treated. The Manual for the use of officers in the field， on which I am basing these lectures， states the general rule on the subject of new warlike inventions in the following terms：'With the exception of the means above stated to be prohibited. any instruments of destruction， whether open or concealed， partial or widespread in their effects， shells of any weight， torpedoes， mines， and the like， may legitimately be employed against an enemy； and seeing that the use is legitimate， there is no reason why the officers or soldiers employing them should be refused quarter， or be treated in a manner worse than other combatants.' The means above stated to be prohibited are poisoning water or food， assassination， and the use of explosive bullets above certain weight. It is added that 'a humane commander will， so far as the exigencies war admit， endeavour to provide that the effect of the explosion of a mine or a torpedo should extend to combatants only， but practically no rule can be laid down on the subject.'

　　The latest instance in which mines of an extent and destructiveness far exceeding the immediate object were used， was one which attracted but little notice in this country owing to the distance of the locality at； which the explosion took place. It happened， however， that in the course of the advance of the Russian armies through the Tartar countries to the frontier of Afghanistan a well-known Russian commander， much beloved and respected， General Skobeleff， found his progress obstructed by a great fortification erected by a large tribe of Tartars. This was the fortress of Akhal Teke， an enormous construction of burnt clay. It would have taken much time， and cost many lives， to attack it by any of the recognised methods of capture. It appeared， however， that the tribe which had erected this fortress had no conception whatever of a mine， and Skobeleff passed several weeks before these walls in excavating mines of an enormous extent. At last， the besieged having no suspicion that they were likely to be attacked in any way except that known to them， the mines were exploded， and the greater part of the fortress and a vast number of persons inside it were at once destroyed. The remainder of the tribe received very severe treatment from the successful besiegers， and but a small portion escaped. It is sad to think that this example of warlike severity was set by the general of the Power which， it would be only just to admit， has done most to mitigate the cruelties of war. Skobeleff defended himself on the ground that what he had done was true humanity rather than severity， and that in no other way could a tribe which was not only formidable in war， but had done much to prevent the even temporary establishment of peace in those countries， be reduced. But， no doubt， in all operations of war which are conducted under the eyes of civilised men， who watch them through the press and the telegraph， the practice is stated in these Manuals， that 'a humane commander will， so far as the exigencies of war admit， endeavour to provide that the effect of the explosion of a mine or a torpedo should extend to combatants only； but practically，' it is cautiously added， 'no rule can be laid down on the subject.' The general principle is —— and this is the conclusion of all these writers —— that in the mode of carrying on the war no greater harm shall be done to the enemy than necessity requires for the purpose of bringing him to terms. This principle excludes gratuitous barbarities， and every description of cruelty and insult that serves only to exasperate the sufferings or to increase the hatred of the enemy without weakening his strength or tending to produce his submission.

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nteresting question for us to ask ourselves is， whether in the future history of warfare there is likely to be any such proscription of weapons through sheer dislike or horror as was common in the Middle Ages. I am myself not convinced but that hereafter there may be a very serious movement in the world on the subject of some parts of the newly-invented armament. Let us just take into our consideration two new inventions， which have shown themselves capable of causing terrific destruction —— two new implements of naval warfare， the Ram and the Torpedo. Neither has been extensively tried at present —— one hardly at all. At the battle of Lissa in the Adriatic， on the coast of North America during the War of Secession， and also on the western coast of South America， the ram has been tried， and has proved to be an instrument whose effects can hardly be measured. Ships have been sunk in a moment or two by its use. Of the use of the torpedo， however， we have hardly any example. Among military and naval men there is still great controversy as to its effectiveness. Torpedoes during the Russo-Turkish war were laid down in the mouths of the Danube in great quantities， but the Russians had no difficulty in removing them without injury to themselves； and all over the World it is still a question whether the defence or the attack， as these writers put it， is the stronger in their case. In this country， I think， which is confident of the possession of the most formidable forms of this implement， there is at present considerable belief in its effectiveness in war； but in France， on the other hand， the opinion on the whole tends in the other direction. French naval writers maintain emphatically that， as yet， it has not been proved that the torpedo is a weapon which can be used on a large scale with safety by a naval combatant； but these French writers have raised a question which is extremely interesting， to us with regard to the discussion which I am just closing. 'You must remember，' says one of them， a celebrated French admiral， 'that a torpedo is used under water and in the dark. Now， are you quite sure that you will always aim your attack against the ship which you intend to destroy？ Suppose that the commander of a torpedo fleet makes his way to a force of ships lying off a particular coast， and one of his torpedoes is successfully fixed to the vulnerable parts of one of them. The electric spark is applied， and the ship and everybody on board it is blown into the air or sent into the depths of the sea！ Supposing， however， immediately afterwards it is discovered that the ship which has been destroyed is a neutral， perhaps one of the finest vessels of a friendly Power！ Do not you think that there would be a thrill of horror through the civilized world， and are you sure teat a combination of civilised nations will not be formed which will condemn the torpedo to the same proscription， and perhaps by the same means， as far more merciful weapons were condemned in the Middle Ages？' For my part， I think this reasoning exceedingly strong， and I am not yet convinced that warlike invention may not reach some point at which the natural feelings of humanity will cause it to be arrested.

　　I pass now briefly to a portion of these Manuals which in spirit is a good deal connected with that which I am placing before you. It is the chapter which they contain on 'Spies and Stratagems.' A spy， they all say， in a military sense is a person who is found in a district occupied by the enemy collecting secretly， and in disguise， information respecting his condition and designs， with a view of communicating such information to the opposing force. Secrecy and disguise are the essential characteristics of a spy in the military sense. An officer in uniform， however nearly he approaches to the enemy， or however closely he observes his motions， is not a spy， and if taken must be treated as a prisoner of war. Spies when taken are punishable with death， either b

y hanging or shooting. The services of spies must be secured by rewards， as no one can be called upon to undertake the office of spy as a matter of duty or against his will. A commander may， course， avail himself of information if given by a traitor. How far he is justified in endeavouring to suborn treachery， is a more difficult question. Such transactions are spill by Vattel to be not uncommon， though never boasted of by those who have entered on them. An officer may feign to be a traitor for the purpose of ensnaring an enemy who attempts to corrupt his fidelity； but if he voluntarily makes overtures to the enemy under presence of being a traitor， and then deceives the enemy with false information， his conduct is dishonourable， and contrary to the customs of war. Prisoners of war cannot be punished or ill treated for refusing to disclose the number or condition of the body to which they belong. False attacks， the dissemination of false information or pass-words when not perfidious， are permissible by the customs of war. Indeed， to take a town by surprise， or to turn a position by a stratagem， is more glorious nowadays to a General than to effect the object by force， in proportion as to win a great battle with little slaughter is more creditable to the skill of the General than to gain a bloody victory. It must， however， be observed that no deceit is allowable where no express or implied engagement exists that the truth should be acted or spoken. To violate such an engagement is perfidy， and contrary alike to the customs of war and the dictates of honour. For example， it is a gross breach of faith and an outrage against the customs of war to hoist a Hospital flag on buildings not appropriated to the wounded， or to use a place protected by a Hospital flag for any other purpose than a Hospital.

　　The opinion here expressed， that successes gained through a spy are more

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